Studies On The Crime Of Fraud On Letter Of Credit

The crime of fraud on letter of credit is a swindling act through L/C taking place in international trade and financial field, it is a kind of transnational intelligent crime. It causes enormous losses to party, and often unable to retrive, therefore, it is very harmful to the society. As a great international trading nation, the degree of dependence on foreign land of Chinese economy will be higher and higher, and there will be more and more swidle crime, this will be threatenning the security of finance of our country seriously, the normal international trade order is challenged severly too. So, there is important theory value and practical meaning to carry on it systematacislly and deeply. In order to acquire better understanding to this crime on the whole, this thesis makes a brief exposition to the L/C system, the swindled risk through L/C, the legislative state and concept of the crime of fraud on L/C at first, then it plays particular emphasis on concrete exhaustive analysis and study on this crime's constitutive elements of crime, judicatory determination, penalty setup and application and legislative improvement etc. The crime of fraud on L/C refers to the swindling acts through L/C by the method to adopt the fictional facts or hold back the truth, aiming at obtaining other's property and economic benefits. The Criminal Code of China specially stipulates this crime in Article 195, Article 199 and Article 200. The main object infringed by the crime of fraud on L/C is the menagement system of L/C, and the ownship of property is only its choice object, namely the crime might not infringe the ownship of the property. According to the stipulations of Article 195 of the Criminal Code of China, the objective aspects of crime of fraud on letter of credit can be summarized in "carries on swindling activities through L/C", and concrete behavior includes: utilize forged, adulterated L/C or enclosed documents, files that are up to; utilize the L/C becoming invalid; defraud of the L/C; carries on swindling activities through L/C with other methods. Namely the objective behavior is shown as "utilizing, defrauding"the L/C and and documents, files enclosed and are up to, along with carrying on swindling activities through L/C with other methods. Natural persons and units can all become subjects of crime of the crime of fraud on letter of credit, and this crime is perpetrated more often by units as for the character of L/C. On its subjective aspects, the crime of fraud on letter of credit can only be direct intent crime, and all direct intent crimes contain the specific criminal purposes, so this crime certainly contains specific criminal purpose. However, "the purpose of illegal possession"can not cover all the purposes of this crime, so this thesis states its criminal purpose with "obtaining illegal economic benefits purpose" which with relatively extensive epitaxy. In the course of judicatory determination, not merely should we pay attention to distinguishing the crime of fraud on letter of credit from the common illegal L/C activities and the professional negligence of L/C, but should distingish the crime of fraud on letter of credit correctly from the crime of forging/adulterating financial coupons, the crime of fraud of loan and the crime of fraud of comtract. Especially the nature of the crimes of swindling "packing loan"from banks through L/C that happened again and again in recent years, this thesis deem that they cannot be regarded as overlap of articles of law or implicated offense without exception, but ought to make a concrete analysis according to the concrete conditions. Among the practice, the situation might appear that actor steals other's L/C or enclosed documents, files that are up to and uitilize them, we also should make a concrete analysis of the behaviors, and can't regard them as larceny or the crime of fraud on letter of credit without exception. Because the crime amount is one of the important bases setting up the range of penalty of the crime of fraud on letter ofcredit, so counting the crime amount is an important content when this crime judged. For a long time, people are quite inconsistent in understanding of the crime number, so this thesis makes shallow exploration, and regards the number which the injured party hands over as the penalty number. On the subject of judicatory determination of the crime of fraud on letter of credit, there is an indispensable content, namely determination of accomplished or attempt offense. This crime is an offense of act, but not a consequential offense. In the criminal theory, an offense of act may constitute an attempt offense except a simple offense of action. Obviously, this crime is not an offense of act, therefore, there are attempt and accomplished offenses among these crimes. Its accomplished sign is that an actor finishes swindling acts which are stipulated in the Criminal Code, otherwise it may constitute a preparation of offense, or a discontinuation of offense, or an attempt offense. The penalty of the crime of fraud on letter of credit includes evaluation and application of legally prescried punishment mainly. The establishment of legally prescried punishment of this crime which can reflect correctly the nation's negative evaluation on the kind of these offenses and the attitude to condemnation of criminals, is comparatively rational on the whole. But that hang death penalty for this crime, shows that the legislator have not understood correctly the extent of social harm brought by crime of fraud on letter of credit undoubtedly, as a result, it is refuted by a lot of criminal law scholars. Application of legally prescribed punishment involves mainly the questions, such as principles of measurement of penalty, the plots of measurement of penalty and methods of measurement of penalty, etc. In practice, we should fully consider the concrete plots of crime and measure penalty in accordance with the law on the basis of the principles of measurement of penalty. Through carrying on further investigation on this crime, this thesis discusses legislative improvement on the crime of fraud on letter of credit in the last part, and propose that "aim at obtaining illegal economic benefits"should be indicated on the count of this crime. In regard of legally prescried punishment, this thesis points out that death penalty should be cancelled, pecuniary penalty perfected further, system of concurrently imposing fines put up, so that some enlightenment can be offered for the judicial practice to comprehend the crime of fraud on letter of credit in an all-round way.